Cameron Slater, aka Whale Oil, has never been a journalist in any sensible sense of the word. That’s despite the shameful Canon media award he received for wallowing in the sordid details of a mayoral affair. And it’s despite the High Court ruling that for the purposes of the Evidence Act, he could be treated as a journalist for source protection reasons (the judge found that the Evidence Act didn’t require any assessment of the quality or independence of Slater’s posts, and then he ordered Slater to reveal his sources anyway, since his campaign against Matt Blomfield wasn’t really in the public interest and appeared to be driven by people with a personal vendetta against Blomfield).

I think the reality has always been that Slater lacks the key attribute of a journalist – a commitment to seeking the truth to serve the wider public interest. That attribute not only defines a real journalist, but tends to help ensure that ethical journalists don’t make harmful mistakes, or at least act responsibly when they do.

So I have to say that I’m pleased that Slater has got his come-uppance in the courts, even if it has taken a long time. In the last few months, we’ve seen the High Court strike out his defences in Blomfield’s defamation case against him, holding that he had repeatedly failed to point to specific facts that supported his allegations against Blomfield, and that there seemed to be no cogent evidence for any of them. (Slater appealed, then subsequently abandoned it).

And we’ve also seen the Human Rights Review Tribunal rule that Slater is not a journalist for the purposes of the Privacy Act. So when he gleefully published Blomfield’s private documents that the High Court said were probably unlawfully acquired, he breached the Privacy Act. He was not entitled to the exemption for news media. He had to pay Blomfield $70,000 damages.

I want to make a few comments about that decision. It strikes me as very significant in lots of ways that haven’t been talked about much. I’m going to criticise the decision a bit. But I want to make clear that I am not criticising the result. What Slater did to Blomfield was horrible; it was an outrageous breach of his privacy; and it’s a good thing that he’s been hauled over the coals for it.

For all that, the decision is remarkable for several reasons.

It’s extremely late

The most obvious one is how long it has taken. The decision has taken four years to arrive. I’m not sure I’ve ever seen a decision so late. On what planet is that acceptable? Justice delayed is justice denied, especially when a ruling involves an aspect of public vindication, as this one does. I’m not entirely sure where the fault lies. There was a procedural hitch but it doesn’t come close to justifying the delay. The problems of the resourcing and backlog of the Human Rights Review Tribunal have been discussed elsewhere. But something has gone very badly wrong here.

It reaches a different decision to the High Court

Slater tried to rely on the High Court’s ruling that he was a journalist. The HRRT pointed out that one civil judgment isn’t evidence in another proceeding. It also said that the definition of “news medium” in the Evidence Act is different to that in the Privacy Act. That’s true. And you might think that we would want to give a wide meaning to “news medium” when it’s in a provision whose purpose is protecting confidential sources in order to promote journalism in the public interest, and be more sympathetic to a narrower reading of “news medium” in a provision whose purpose is to give a get-out-of-jail free card to those infringing others’ privacy. (This supports the HRRT’s conclusion but isn’t a point that the HRRT makes).

Anyway, the HRRT finds that it can take into account the High Court decision, but that “the Evidence Act provisions provide little assistance to the interpretation of the relevant Privacy Act provisions”. That strikes me as taking things a bit too far. The definitions are not identical, but they are similar in many ways. The core issue for both is identifying what features are at the heart of the news business, such that the law should give benefits to those who fit the definition. And in fact, the HRRT does reach a similar conclusion to the High Court about what “news” is – the provision of new information about recent events of interest to the public. This is not limited to traditional mainstream media.

Maybe only commercial news media are protected

The Privacy Act definition refers to agencies “whose business… consists of a news activity.” Does that mean there needs to be a commercial element? Maybe, says the HRRT. It didn’t need to decide the question because it found that Slater was making some money from his blog. But the HRRT leaves open the possibility that a blog or website that is non-commercial (one that’s publicly funded – hello Radio NZ!, or funded through donations, or a labour of love) may not get the Privacy Act exemption even if it is plainly producing news. It seems the Director of Human Rights Proceedings supported this view. That seems like a conclusion that is not compelled by the language of the media exemption, and would not survive a Bill of Rights analysis.

News activities must be “responsible” to qualify for the exemption

Woah! This is a big deal. The HRRT have grafted on a new element to the definition of news media. You can only qualify for the exemption if you are acting responsibly.

What does this mean? “The basic elements of responsible journalism include accuracy, fairness, balance, error correction and right of reply.”

The HRRT says this is implicit in the Privacy Act. “The exemption was not granted to facilitate the making of extreme and vitriolic accusations… or to disseminate false news.” It says this is consistent with the new responsible communications defence in the “analogous field” of defamation law. It cites Justice Asher from the High Court Blomfield case, twice. It cites the Harmful Digital Communications Act, saying its conclusion is broadly consistent with the framework there.

Let me count the ways this is a bit weird.

First, it’s really not implicit in the Privacy Act. This is the first time anyone has suggested this element might be in there. The reports that the HRRT draws on (by the Law Commission and the UK’s Cairncross review) to establish the significance of responsibility post-date the Privacy Act by decades.

Second, despite the fact that the HRRT cites Justice Asher in support of its conclusion, this is not what he decided. He said he wasn’t required to assess the quality or ethics of the posts when evaluating whether Slater was a journalist.

Third, there’s no particular reason that the common law of defamation (and in particular a case that was not concerned with defining a news medium but was concerned with encouraging free speech) should shape the interpretation of a statutory provision in an Act aimed at protecting privacy.

Fourth, I’m not sure the HRRT has grappled with just how nebulous this responsible journalism requirement might be. In particular, it has found that non-traditional media may be entitled to this exemption in some situations, but seems to have subjected them to traditional news ethics. Admittedly, that’s also what the High Court has done recently in Slater’s defamation battle with Colin Craig. The HRRT simply says that the “concept of responsible journalism is not new and is well understood in the media field”. That’s sort of true. But it is not well understood in the non-media field. There may well be an argument that a openly partisan but independent blog, that breaks news and is diligent about accuracy and corrections, but doesn’t seek and include balanced viewpoints, is nevertheless a news medium. The Court of Appeal in Durie seemed to accept that the rules might be different for different publishers. The HRRT doesn’t seem to leave that door open. The HRRT asserts that its interpretation is consistent with the Bill of Rights Act, and it might be, but the HRRT never does the analysis that you might think was required by the Supreme Court’s decision in Hansen, given that the interpretation reached by the HRRT actual narrows free speech protection.

Fifth: no right to disseminate false news? What happened to the idea that the breathing space required by a free society requires protecting the right to be wrong? We might accept that it doesn’t include the right to knowingly spread lies. But most cases aren’t about that. They are about publications that the publisher thought were true, but turned out to be wrong.

Sixth, it’s a bit of a stretch to say this development is consistent with the Harmful Digital Communications Act. Or that that Act has much to say about the definition of news in the Privacy Act.

Seventh (and this is a bit picky), if we’re looking for contextual clues as to whether the news medium exception should be read broadly or narrowed down to “responsible” journalism, we might be tempted to look closer to home than the common law of defamation or the Harmful Digital Communications Act. Section 14 of the Privacy Act itself requires the Privacy Commissioner to have due regard for “the general desirability of a free flow of information”. Might that not suggest a wider approach?

For all of that, I have a sneaking fondness for this change, as a matter of policy. It accords with my notion that news isn’t really news unless there’s an ethic of adherence to truth and public service. It will help manage the difficult questions of who counts as media in the modern age. It makes publishers earn their protection. It’s based on principle. It incentivises ethical behaviour, much of which is common sense. And it is broadly consistent, as the HRRT points out, with current thinking among judges, jurists and reform agencies.

But still…

Doesn’t this mean that even mainstream media may lose this protection for news activities that fail this “responsible journalism” hurdle? Sure looks like it. And fail it they sometimes do: just look at the decisions of the Media Council and the Broadcasting Standards Authority, or listen to a few episodes of RNZ’s Media Watch. Journalists might find lawyers like me starting to argue that they might generally have an exemption under the Privacy Act, but it doesn’t apply in this particular instance because they haven’t acted responsibly. That would expose them to a complaint before the Privacy Commissioner that they have revealed personal information without consent (and without falling into one of the other fairly other narrow exceptions in the Act) thereby causing humiliation, loss of dignity, or injury to the feelings of the complainant. There’s no public interest defence either. Damages are awardable by the HRRT.

I think I might have buried the lead.

It didn’t even apply this new responsibility test

Most bizarrely, perhaps, the HRRT – having developed this flash new requirement of responsibility – doesn’t even apply it almost the very first time it is called upon to do so.

The first Whale Oil posts Blomfield complains about accuse him of ripping off a kids’ charity. The HRRT cites some of the posts and concludes “we accept that an allegation concerning the scamming of a charity would potentially engage the public interest… We are satisfied Mr Slater has established the news medium exemption in relation to this blog.”

Wait a minute. What happened to responsibility? Were these allegations responsible? This can be readily checked. Whale Oil posted his source material. Did the underlying documents, taken from Blomfield’s own computer system, bear out the allegations? Blomfield says they don’t. The High Court said they provided no cogent support for any of Slater’s allegations. They plainly lack balance, since Blomfield’s views were not sought and included in the posts. But the HRRT doesn’t even look at this question. It’s extraordinary.

The HRRT finds the other posts do not qualify for the exemption, mostly because they do not relate to recent events, are not “worthy of discussion”, have not attracted significant public interest, were not driven by altruistic motives, or – in relation to the new responsibility test – were unbalanced, gratuitous, or unsubstantiated.

It seems to award damages for defamation

The HRRT finds that the posts, by publishing Blomfield’s personal and private documents, interfered with his privacy. It then considers damages. You might expect that the HRRT would look at the published documents to see how private they were. Do they show him visiting a brothel? Watching porn? Making very sensitive or intimate comments? In fact they do not. They are not generally very sensitive at all. The worst is some bank records. The rest is mostly boring commercial correspondence that has been wildly misinterpreted by Slater.

Don’t get me wrong. Slater has done horrible things to Blomfield. But in terms of harm to Blomfield’s privacy, there’s not much there. But the HRRT does not conduct this exercise. It looks at how Slater used the private material, even though it wasn’t very private. He used it to misportray the documents and suggest terrible wrongdoing. And that, for the HRRT, justifies one of its biggest awards of damages ever: $70,000. This was because Slater must have known the documents were illegally obtained (fair enough; this seems relevant to the infringement of privacy).

It was also because the Slater’s allegations were extreme, and part of a concerted campaign, and held Blomfield up to ridicule. This seems like damages for defamation. It seems rather far removed from what the Privacy Act was designed to protect against – disclosures of true but private information.

The HRRT finds that the privacy breach was a “material cause of the harm suffered by Mr Blomfield.” That seems true as far as it goes, but it does set a very low threshold for the award of damages where the real harm isn’t really the revelation of something private.

It’s up to the High Court in the defamation case to set damages for defamation in an upcoming hearing. Will the judge have to factor in the compensation already awarded for much the same thing by the HRRT? (Not that it’s likely to make much practical difference, since Slater is now bankrupt).

So

A landmark case. But an odd one. I’ll be very interested to see how it shakes down.